SHARAD YAGNIK VS. PREMIUM OUTLET PARTNERS, LP (L-2601-18, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0179-20

SHARAD YAGNIK and

MONA YAGNIK, h/w

Plaintiffs-Respondents,

APPROVED FOR PUBLICATION

v. March 29, 2021

APPELLATE DIVISION

PREMIUM OUTLET

PARTNERS, LP, d/b/a

LIBERTY VILLAGE PREMIUM

OUTLETS, GEO MATRIX

CONSTRUCTION, CORP.,

PETER GIANCOLA AND SONS,

INC., LONGFORD

LANDSCAPES and

EXCAVATION, INC.,

Defendants,

and

PENNONI ASSOCIATES,

INC.,

Defendant-Appellant.

____________________________

Argued February 22, 2021 – Decided March 29, 2021

Before Judges Sabatino, Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law

Division, Mercer County, Docket No. L-2601-18.

Gary C. Chiumento and Juan C. Perez argued the cause

for appellant Pennoni Associates, Inc. (Chiumento

McNally, LLC, attorneys; Gary C. Chiumento and Juan

C. Perez, on the briefs).

Scott A. Fellmeth argued the cause for respondents

(Saltz Mongeluzzi & Bendesky, PC, attorneys; Larry

Bendesky, Adam J. Pantano, Robert W. Zimmerman,

and Scott A. Fellmeth, on the brief).

Jonathan H. Lomurro argued the cause for amicus

curiae The New Jersey Association for Justice

(Lomurro, Munson, Comer, Brown & Schottland, LLC,

attorneys; Jonathan H. Lomurro, of counsel and on the

brief; Christina Vassiliou Harvey and Alan J.

Weinberg, on the brief).

Anthony Cocca argued the cause for amicus curiae New

Jersey Defense Association (Cocca & Cutinello, LLP,

attorneys; Anthony Cocca and Katelyn E. Cutinello, of

counsel and on the brief).

Lawrence P. Powers argued the cause for amicus curiae

American Institute of Architects-New Jersey, New

Jersey Society of Professional Engineers, American

Society of Landscape Architects-New Jersey, New

Jersey Society of Professional Land Surveyors and the

New Jersey Chapter of the American Society of Civil

Engineers (Hoagland, Longo, Moran, Dunst & Doukas,

LLP, attorneys; Lawrence P. Powers, of counsel and on

the brief; Peter K. Oliver, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

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We granted leave to appeal in this construction site accident case to

address an unresolved question of New Jersey law. The question is this: When

is an Affidavit of Merit ("AOM") under N.J.S.A. 2A:53A-27, supporting claims

against a licensed professional, due in situations where a plaintiff’s original

complaint is later amended and additional answers or other pleadings are filed?

In the present case, plaintiffs served AOMs (one from an engineer and

another from an architect) more than 120 days after the defendant engineering

firm filed its answer to the original complaint, but before that firm answered an

amended complaint naming another defendant.

Relying in part on several federal decisions interpreting New Jersey law,

the trial court ruled the deadline for an AOM "does not come into play until the

pleadings are [all] settled." Based on that reasoning, the court deemed timely

the two AOMs tendered by plaintiffs more than a year after the engineering firm

had filed its original answer and first amended answer.

For the reasons that follow, we respectfully disagree with the non-binding

federal caselaw cited by the trial court. Instead, we hold the AOM statute's text

and legislative purposes require the affidavit to be served within 60 days

(extendable for good cause to 120 days) from the date when the licensed

professional files its answer, regardless of whether the pleadings are

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3

subsequently amended to name other defendants or assert additional claims .

That deadline is subject, however, to the long established AOM exceptions for

(1) substantial compliance or (2) extraordinary circumstances.

As we shall explain, extraordinary circumstances are present here and

justify an extension of time to permit the late AOM filing. The circumstances

stem from the parties' early negotiation of a stipulation that dismissed the

engineering firm from the lawsuit without prejudice, based on representations

the firm had no role in the allegedly unsafe condition of the stairs on which

plaintiff was injured. The 120-day AOM deadline expired during the weeks

while the stipulation was being negotiated by counsel, but defendant chose not

to move at that time for a with-prejudice dismissal on that basis.

When ensuing discovery revealed the engineering firm's actual

involvement in designing the stairs, the trial court allowed plaintiffs to reinstate

their malpractice claims against the firm. Plaintiffs then promptly served the

AOMs. Given how events unfolded, the situation justified plaintiffs' delay in

tendering the AOMs.

We therefore affirm the trial court, albeit for slightly different reasons

than were set forth below, and remand the case for further proceedings.

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4

I.

The procedural history and still-developing facts are intertwined. For our

purposes we highlight the following details.

On the afternoon of December 16, 2016, plaintiff 1 Sharad Yagnik fell and

injured his right elbow while entering the Liberty Village Premium Outlets in

Flemington. At the time, plaintiff was walking up the stairs through an access

area, which was under construction for improvements but apparently still open

to the public. His trip and fall on the accessway required extensive surgery to

repair his shattered elbow.

Plaintiffs filed a civil action in the Law Division in December 2018,

initially naming as defendants the owner-operator of the shopping outlet, the

contractors for the site, and the present appellant, Pennoni Associates, Inc.

("Pennoni"), an engineering firm that performed certain services for the

construction.2 As is common in construction site accident cases—for which

1

We refer to Sharad Yagnik in the singular as "plaintiff," recognizing that his

wife Mona Yagnik is a co-plaintiff.

2

It is unclear whether Pennoni provided in this project engineering services,

architectural services, or both. Both professions are included within the scope

of licensed professionals covered by the AOM statute. N.J.S.A. 2A:53A-

26(b)(architects); -26(e)(engineers); see also Hill Int'l, Inc. v. Atlantic City Bd.

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5

additional responsible parties are often later identified through discovery—

plaintiffs' complaint named several entities and persons as fictitious defendants.

According to plaintiffs' original complaint, one or more of the defendants

used an "off-white color concrete" in constructing the stairs, which was the same

color used in the nearby ramp. The matching color allegedly failed to create a

visual contrast that could aid pedestrians in distinguishing the stairs from the

inclined surface of the ramp, and defendants failed to "ensure handrails were

placed and/or installed at the access point for the shops." Further, plaintiffs

alleged defendants were negligent by failing to "ensure that cone and/or safety

barriers were placed and/or installed around the staircase" while construction

was ongoing.

The Original Complaint Through Stipulation of Dismissal

Notably, the civil case information form accompanying the original

complaint was marked "No" in response to the question "Is this a professional

malpractice case?" Despite that response, plaintiffs alleged in the original

complaint that "Pennoni was contracted to design and/or engineer a new

of Educ., 438 N.J. Super. 562, 571 (App. Div. 2014) (noting the differing but

overlapping expertise of architects and engineers), leave to appeal granted, 221

N.J. 283 (2015), appeal dismissed, 224 N.J. 523 (2016). For simplicity, we shall

refer to Pennoni as an "engineering firm" in this opinion.

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6

staircase on the access area on the west side of the Property." (Emphasis added).

Further, the complaint also alleged:

As an architect, Pennoni had a duty to design, maintain,

engineer, fabricate, plan, plot, supervise and/or

establish proper and adequate procedures to ensure that

the construction of the walkways, staircases and means

of access to the shops on the Property could be

completed safely, and to protect and/or otherwise warn

business invitees, such as Mr. Yagnik, of any dangerous

conditions.

[(Emphasis added).]

On January 21, 2019, Pennoni filed an answer to the original complaint.

In the answer, Pennoni asserted numerous defenses, among them an anticipatory

defense that "Plaintiff failed to meet the requirements of the Affidavit of Merit

Statute," despite the fact that the statutory time period for serving an AOM does

not begin to run until the professional's answer is filed. See N.J.S.A. 2A:53A-

27.

Then, on February 8, 2019, Pennoni unilaterally filed an amended answer

to the original complaint. In that amended answer, Pennoni realleged the AOM

defense. Along with that amended answer, Pennoni filed an amended civil case

information form, changing its response to the question "Is this a professional

malpractice case?" to "Yes." Pennoni also moved, without opposition, for an

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order changing the track assignment of the case from Track II to Track III

because of the professional liability nature of plaintiffs' claims agains t it. The

trial court granted that motion, thereby allowing a lengthier 450 days of

discovery as a Track III case.

Meanwhile, plaintiffs' counsel sought to ascertain Pennoni's actual

involvement in the unsafe condition of the premises and served document

demands and interrogatories. On February 8, the same day of Pennoni's

amended answer, plaintiffs' counsel sent an email to Pennoni's counsel saying

he had left a message with his assistant and would "like to see if we can fast

track getting information and documents from your client to see the extent of its

involvement here." Plaintiffs' counsel sent a follow up email on February 27, to

which Pennoni's lawyer responded that he had not yet had a chance to speak

with his clients.

Counsel again exchanged emails on March 13, a date still within the first

sixty days of Pennoni's initial answer. Plaintiffs' attorney said he was "circling

back" to find out if Pennoni's counsel had spoken with his clients and whether

he had obtained any documents "regarding the extent of [their] involvement."

Pennoni's counsel replied a few hours later, with an email that made the

following salient representations:

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PAI [Pennoni] provided a design for exterior

improvements throughout the shopping center. Their

role during actual construction was limited to 5 site

visits at times/locations selected by the Owner and

would not have included an examination of the

contractor’s means and methods (inclusive of site

control methods). Our review of the site visit dates

suggest that [Pennoni] was not on site for several

months before the date of accident and not again until

several months thereafter. That is, they were not on site

at the time of the accident.

[(Emphasis added).]

One week later, on March 20, plaintiffs' counsel and Pennoni's counsel

had a further conversation, in which they began to pursue negotiations that

eventually culminated in a without-prejudice dismissal of Pennoni from the

lawsuit. Toward that end, Pennoni's counsel emailed plaintiff's counsel the

following:

[C]onfirming our discussion today at which time we

addressed the prospect of a dismissal (even if only

"without prejudice") as a result of an affidavit from my

client which disavowed any involvement in the

contractors' construction means and methods (including

site safety techniques) for the project . . . . I will

explore this prospect with my client as soon as possible.

Pennoni's counsel added that "[i]f we are able to come to an understanding on

this point, we should be prepared to discuss terms and conditions under which

[p]laintiff[s] could reinstate the complaint."

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9

With respect to the AOM deadline, Pennoni's counsel's March 20 email

stated: "In the meantime and to avoid . . . unnecessary expense and discovery,

I am willing to consent to an extension of the time from which to provide an

Affidavit of Merit by 2 additional weeks (14 days) beyond the initial 60 day

period following our answer to the complaint."

Thereafter, plaintiffs' counsel sought an update from Pennoni's counsel on

March 28, asking about the status of an affidavit of Pennoni's non-involvement

and for a copy of the contract for the project. He followed up again with an

email on April 2, which read—significantly for our AOM timing purposes here:

[H]aven't heard back from you. Any update? Our

affidavit of merit is due Friday. Thanks.[3]

That same day, April 2, Pennoni's counsel replied by email with more

assurances about extending the AOM deadline, along with these further

representations about the facts:

First, my client is willing to extend any AOM

time deadline as necessary in this matter including and

up to an additional 60 day period beyond the initial 60

day period for a total of 120 days from the date the

original answer was filed in this matter.

3

We infer from the calendar that counsel was referring to Friday, April 5, which

was 74 days after Pennoni filed its original answer and 56 days after Pennoni

filed its amended answer. R. 1:3-1. We are unsure what calculations counsel

was using to compute the perceived AOM deadline.

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More importantly, my client has agreed in

principle to provide an appropriate

affidavit/certification regarding the fact that it was not

responsible for the jobsite safety conditions, was not on

the site at or around the time of Plaintiff's accident and

had no responsibility for regular, routine job site

inspections of any type during construction.

[(Emphasis added).]

Pennoni's counsel specifically proposed:

[My client] would prefer a stipulation of dismissal with

prejudice or, at worst, would be willing to provide a

stipulation without prejudice subject to certain pre-

conditions on the right of Plaintiff to re-instate. I am in

the process of preparing a draft stip[ulation] and a draft

certification for your review.

[(Emphasis added).]

In furtherance of their cooperative discussions, Pennoni's counsel sent to

plaintiff's counsel on April 23 the "construction administration services"

contract.

Then, in a collateral development, plaintiffs filed a motion for leave to file

an amended complaint seeking to add as a defendant Longford Landscape and

Excavation, Inc., ("Longford") based upon the contents of a third-party

complaint against Longford that had been filed by one of the contractor

A-0179-20

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defendants. On May 10, the trial court entered an unopposed order granting

plaintiffs leave to so amend the complaint.

On or about the same day, plaintiffs filed a "first amended complaint"

adding Longford as a defendant. The amended complaint made the same

allegations as to Pennoni as plaintiffs had made originally.

While negotiations about a voluntary dismissal were still pending,

plaintiffs kept seeking discovery from Pennoni. Among other things, plaintiffs

requested documents related to Pennoni's involvement in the construction phase

of the premises, and particularly the staircase on which Mr. Yagnik fell.

Pennoni's responses were not detailed or very informative, generally either

directing plaintiffs to the "project file" or objecting on privilege or other

grounds.

In or about "early" June 2019,4 Pennoni eventually supplied plaintiffs'

counsel with an undated certification from the company's office director, in an

effort to substantiate Pennoni's alleged lack of responsibility for the unsafe

condition that existed on the day of plaintiff's accident. The company official

certified that he had supervised Pennoni's employees on this project.

4

The precise date is not clear from the record.

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Based on his understanding of the contracts, the company official asserted

"it was not the responsibility of [Pennoni] to provide the project jobsite safety

means and methods" and that the scope of the work "did not require [Pennoni]

to . . . be responsible to observe the work or the jobsite safety." He stated that

it was instead the responsibility of the project's contractor and subcontractors to

inspect the job site, ensure that pedestrians could not access the site while

construction was ongoing, and erect any needed barriers or warnings. He further

maintained the contractor and subcontractors were responsible for selecting the

concrete used on the site, except that Pennoni specified only its PSI (i.e.,

pressure) rating.

Echoing what defense counsel had previously represented, the company

official certified that Pennoni was "only responsible to be on the job site on 5

occasions during construction," which did not include jobsite safety review; and

that he was not "aware of any alleged safety issues" prior to the accident.

Relying on these various representations, plaintiffs went forward with a

voluntary dismissal of their claims against Pennoni, through a Stipulation of

Dismissal Without Prejudice mutually executed by counsel on July 2 and filed

with the court on July 10. In that Stipulation, the parties agreed, in pertinent

part, that:

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1. All defenses raised by Pennoni in its Answers to

Plaintiffs' Complaints shall remain in full force and

effect, as of the dates such defenses were originally

raised by Pennoni including, without limitation any

defenses relating to the Affidavit of Merit and/or

Applicable Statute of Limitations or Repose;

...

3. Plaintiffs' grounds for any attempt to reinstate the

Complaint as to Pennoni shall be based solely upon

facts discovered on or after June 1, 2019 which would

conflict with the relevant facts provided in the

certification by Pennoni or relevant facts which would

make said certification inaccurate regarding Pennoni's

scope of work of the project.

[(Emphasis added).]

Pennoni was accordingly dismissed from the case without prejudice. The

remaining parties continued actively with discovery, including document

exchanges and depositions. That discovery uncovered more details about

Pennoni's role in the project, particularly with respect to the design of the stairs

on which plaintiff fell.

Plaintiffs' Motion to Reinstate and Pennoni's Cross-Motion to Dismiss

About nine months after the voluntary dismissal, plaintiffs moved in April

2020 to reinstate their claims against Pennoni. In that motion and supporting

certification of counsel, plaintiffs asserted that "[s]ince the entry of the

Stipulation of Dismissal, discovery has revealed Pennoni's failure to design

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safety features for the staircase and Pennoni's involvement in the design of those

essential safety features for the staircase after [plaintiff's] accident." The motion

cited to and attached various responses to interrogatories of multiple co-

defendants attesting to the design and engineering services provided by Pennoni,

reflecting an alleged lack of safety features in the original engineering designs.

Among other things, the motion to reinstate was supported by documents

indicating that: the staircase "was constructed in accordance with the plans and

specifications created by Pennoni"; "the work was performed as directed in the

Pennoni site drawings"; Pennoni employees answered questions about the "rise

and run" of the staircase design; Pennoni's original design of the staircase did

not include "handrails" or "stair nosings" for enhanced visibility; and "after the

fall, [Pennoni] realized that they needed to differentiate to give you a visual

where those stairs were."

The motion exhibits further included a "Pennoni Bulletin" (apparently

produced in discovery to another party) from the construction phase, which

stated "[l]andscaping is to slope from curb to steps, thus removing the need for

railings [on the staircase]."

Plaintiffs also presented post-accident change orders issued by Pennoni in

April 2017 authorizing implementation of an amended design. The exhibits

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further included statements by Longford's company president that the "engineer"

(meaning Pennoni) was involved in site inspections and construction safety.

In response to plaintiffs' motion to reinstate, Pennoni filed a cross-motion

to dismiss the complaint for failure to file a timely AOM. In that cross-motion,

Pennoni emphasized that it had raised AOM non-compliance as a defense in

both its original and amended answers.

Furthermore, Pennoni asserted that the purpose of the office director's

certification, filed along with the Stipulation of Dismissal, "was to confirm for

Plaintiffs' counsel that Pennoni, the design engineer for the project, was not

responsible to 'provide the project jobsite safety means and methods.'" Pennoni

argued the certification did not "make any representations . . . with respect to

Pennoni's design/engineering of the staircase . . . other than to verify that

Pennoni did not select the concrete used on the jobsite . . . ." Pennoni also

contended that plaintiffs were fully aware before entering into the July 2019

Stipulation of Dismissal that "Pennoni was the professional designer of the

subject staircase."

In sum, Pennoni argued there were no new relevant facts to justify

reviving plaintiffs' claims, and, additionally, "more than 120 days have now

passed" since the filing of Pennoni's answer to plaintiffs' complaint alleging

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professional negligence, during which time they failed to provide an AOM.

Resting on that premise, Pennoni sought to have the motion to reinstate rejected.

In reply, plaintiffs asserted they had no access to Pennoni's design plans

or modifications made during the construction phase of the project, and had

"absolutely no idea as to why handrails or stair treads were absent" at the time

of the accident. They maintained such facts were not made available to them by

Pennoni, as requested in discovery, and that the information did not come to

light until later discovery responses were filed by other defendants in the case.

Plaintiffs alleged the office director's certification was misleading because it

was not "a full and accurate representation of Pennoni's involvement in the

construction project."

Plaintiffs advised the motion judge they were ready to supply two AOMs

against Pennoni—one from a licensed engineer and another from a licensed

architect. The affiants each attested that from their review of the file, there is a

reasonable probability that Pennoni deviated from applicable standards of care

"with regard to the design, layout, documentation and/or construction

administration of the renovation of the walkways at [the premises] . . . including

the incident stairway."

The Motion Judge's Ruling

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After hearing oral argument, the trial court granted plaintiffs' motion to

reinstate its claims against Pennoni. In the judge's written decision, she noted

plaintiffs' contention that they had been misled in the representations about

Pennoni's role in the project site, and that discovery obtained from other parties

after Pennoni had been let out of the case shed a different light upon the facts.

The judge denied Pennoni's cross-motion to dismiss and its assertion that

the AOMs plaintiffs stood ready to tender were unjustifiably late. In her

analysis, the judge referred to and adopted the reasoning of several federal

decisions, which we shall discuss, infra, in Part II, interpreting New Jersey state

law under the AOM statute. Under the logic of those federal cases, as the judge

put it, the deadline for "the affidavit of merit does not come into play until the

pleadings are [all] settled." Here, the pleadings were not settled because

Pennoni had not yet answered the most recent amended complaint, which had

added Longford as a co-defendant.

The judge found it significant that "[a]t no point prior to th[e] [S]tipulation

[of Dismissal] did Pennoni file an answer to the amended complaint."

Moreover, she noted Pennoni "never filed [before its April 2020 cross-motion]

a motion to dismiss the complaint for failing to file an affidavit of merit," even

though, by the judge's assessment, the AOM had been initially due in March

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2019, sixty days after Pennoni's original answer. As the judge found, plaintiffs

"stand[] ready to serve their [AOMs] on Pennoni, who slept on [its] right to

motion this court for dismissal of the complaint under the [AOM] statute."

This Interlocutory Appeal and The Amici

Pennoni moved for leave to appeal, which this court granted on a limited

basis. Specifically, our order confined interlocutory review to whether the trial

court erred in allowing plaintiffs to serve their AOMs until after Pennoni filed

an answer to the amended complaint adding Longford.

We also invited various amici to participate in the appeal to "address the

general and unresolved legal question of whether an amendment to a complaint

extends the time for the service of an AOM and whether federal case law

interpreting the AOM statute on that question of state law should be adopted." 5

II.

Because we are confronted with an unsettled question of New Jersey law

construing the AOM statute, we review de novo the legal issues posed.

Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366,

5

We appreciate the thoughtful briefs and participation at oral argument of the

amici, who included advocates respectively aligned with plaintiffs' interests and

with defendants' interests. The State Bar Association respectfully considered

but declined our invitation.

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378 (1995); Triarsi v. BSC Group Servs., LLC, 422 N.J. Super. 104, 113 (App.

Div. 2011) (applying de novo review to a legal issue under the AOM statute).

We begin our analysis with the plain text of the AOM statute. In pertinent

part, the statute instructs:

In any action for damages for personal injuries,

wrongful death or property damage resulting from an

alleged act of malpractice or negligence by a licensed

person in his profession or occupation, the plaintiff

shall, within 60 days following the date of filing of the

answer to the complaint by the defendant, provide each

defendant with an affidavit of an appropriate licensed

person that there exists a reasonable probability that the

care, skill or knowledge exercised or exhibited in the

treatment, practice or work that is the subject of the

complaint, fell outside acceptable professional or

occupational standards or treatment practices. The

court may grant no more than one additional period, not

to exceed 60 days, to file the affidavit pursuant to this

section, upon a finding of good cause.

[N.J.S.A. 2A:53A-27 (emphasis added).]

Our focus is on which pleading acts as the operative pleading for counting the

120-day period set forth in this statute. See R. 1:3-1 ("Computation of Time").

The AOM statute refers to "the answer" of the licensed professional to

"the complaint." It does not refer to the "last answer" or the answer to "the most

recent amended complaint." By its literal wording, the statute contemplates the

AOM will be served promptly, specifically within 60 days of the professional's

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answer to the original complaint, extendable for another 60 days upon a judicial

finding of good cause for such an extension. We are obligated to adhere to this

plain language expressed in the statute. State v. Harper, 229 N.J. 228, 237

(2017) (observing that if the law's plain language "clearly reveals the

Legislature's intent, the inquiry is over").

This straightforward interpretation of the statute's wording comports with

the Legislature's well-known main purposes in enacting the AOM statute. As

the Supreme Court has explained, the statute "was designed as a tort reform

measure and requires a plaintiff in a malpractice case to make a threshold

showing that the claims asserted are meritorious." Galik v. Clara Maass Med.

Ctr.,167 N.J. 341, 350 (2001). "It is designed to weed out frivolous lawsuits at

an early stage and to allow meritorious cases to go forward." Ibid. (emphasis

added).

Waiting until the very end of the pleadings stage for an AOM means that ,

in the interim, the licensed professional will have a possibly meritless lawsuit

hanging over its head. During that often-protracted time frame it may have its

malpractice insurance premiums raised or have to expend substantial funds on

counsel fees out of its policy deductible for participating in the litigation. This

is especially of concern in a construction accident case, in which months of

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discovery typically occur before all subcontractors and other potentially liable

parties are identified and the pleadings are repeatedly amended on an ongoing

basis. The public policies that underlie the AOM statute call for prompt

verification that the malpractice claims have been deemed by an expert in the

field to have merit.

We reject plaintiffs' argument that the terms "complaint" and "answer"

within N.J.S.A. 2A:53A-27 must refer to the last-filed complaint and last-filed

answer because amended pleadings generally displace the pleadings that

preceded them. Although we recognize the general proposition of displacement,

see Rule 4:5B-4, the most sensible reading of the AOM statute is that the 120-

day outer deadline ordinarily should be unaffected by revised pleadings that add

other parties and claims to the lawsuit.

For example, here the amendment of plaintiffs' complaint to add as

another defendant the landscaping company, Longford, logically has no obvious

bearing upon whether there is a reasonable basis to claim that Pennoni itself

violated its own professional standards of care. The trial court erred in focusing

on the fact that Pennoni's answer to the amended complaint adding Longford

had not yet been filed.

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We recognize the 120-day outer deadline can be affected by amendments

to a complaint that fundamentally alter an AOM affiant's evaluation of whether

the licensed professional deviated from standards of care. For example, suppose

the original complaint only alleged Pennoni had served as an architect on the

project and had provided faulty architectural plans, but then was later amended

to insert claims that Pennoni had also acted as an engineer and violated

professional standards of engineering. In that scenario, an AOM from an

engineer would not be due until after the complaint was amended in that manner

and a corresponding amended answer was filed. Otherwise, a series of ongoing

amendments to the pleadings generally should not affect the AOM deadline for

each licensed professional that is sued unless a special interdependency is

shown.

Ideally, the defendant-specific deadlines for each licensed professional

named in the lawsuit should be spelled out in a case management order,

following what is known as a "Ferreira6 conference." Even so, the lack or

cancellation of such a Ferreira conference provides no legal justification for an

untimely AOM. Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J.

6

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

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415, 424 (2010) ("At issue here is what effect the failure to hold a Ferreira

conference will have on the time limits prescribed in the statute. The answer is

none."). Hence, in the present case, we do not hinge our analysis on the lack of

a Ferreira conference.

Also, if a plaintiff should need more time to procure an AOM because it

is waiting for the licensed professional to supply documents or other discovery

vital for its proposed expert to review, the plaintiff can file a motion for relief

based on that demonstrated need. See Fink v. Thompson, 167 N.J. 551, 564

(2001) ("We urge counsel to time their discovery – with court intervention if

necessary – so that facts necessary to comply with N.J.S.A. 2A:53A-27 are

available by the statutory deadlines.").

The Federal Cases

The federal cases cited by plaintiffs 7 do not persuade us to adopt a contrary

interpretation of the AOM statute. Several of those cases arose in peculiar or

exceptional settings. We briefly discuss the cases here.

7

The cases are Snyder v. Pascack Valley Hosp., 303 F.3d 271 (3d Cir. 2002);

Costa v. Cnty of Burlington, 566 F. Supp. 2d 360 (D.N.J. 2008); Szemple v.

Univ. of Med. & Dentistry of N.J., 162 F. Supp. 3d 423 (D.N.J. 2016); and Endl

v. New Jersey, 5 F. Supp. 3d 689 (D.N.J. 2014).

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First, in Snyder, the Third Circuit Court of Appeals dealt with an unusual

situation in which the district court clerk's office refused to allow a plaintiff to

file a pleading that affected the AOM timetable and then allowed an answer to

an amended pleading to be filed prematurely. Snyder, 566 F. 3d 271.

The facts in Snyder involved a medical malpractice suit in which the

plaintiff brought a wrongful death action after her husband died of a pulmonary

embolism. Id. at 272-73. The husband's death occurred after becoming ill

during a business trip on February 11, 1999, in New Jersey, where the defendant

doctor incorrectly diagnosed him and released him the same day. Two days

later, the husband entered another hospital where he was correctly diagnosed

with a pulmonary embolism and succumbed to that illness the next day. Ibid.

In September of that year, plaintiff's counsel obtained an expert opinion that

there had been a deviation from acceptable standards in his treatment by the

defendant doctor. Ibid. Following this, in May 2000, plaintiff filed a wrongful

death action alleging medical malpractice. The parties exchanged pleadings,

and the hospital eventually moved to dismiss the claims against it for failure to

file an AOM.

The district court ruled in Snyder that the original answers were the

operative pleadings for calculating the AOM statute's time limit and dismissed

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the claim. Ibid. The district court used that trigger date for the AOM timetable

rather than the hospital's subsequent answer to a second amended complaint.

The Third Circuit reversed. Id. at 272. The court determined that, under

its view of New Jersey law, "the time limit [for the AOM] began to run on the

date that defendant filed his answer to the second amended complaint and,

therefore, was timely." Ibid. The court reasoned that an "amended complaint

supersedes the original version in providing the blueprint" for the case. Id. at

276.

In reaching that result in Snyder, however, the Third Circuit spotlighted

the unusual procedural features of the case:

First, in his opinion dismissing the case, the

district judge determined that the Clerk's Office erred

in failing to accept the second amended complaint when

it was presented on June 29, 2000. Not until August 25,

2000, some two months later, did the Court enter a

Consent Order permitting the second amended

complaint to be filed and that was not accomplished

until September 5, 2000.

Second, the parties had attended a status

conference before a magistrate judge on August 9,

2000. All defendants had copies of the proposed

second amended complaint at that time. Counsel for

the Hospital made it clear that he would file an answer

to the second amended complaint, rather than the first

amended complaint. He did so one week later, on

August 16, 2000, before the magistrate judge had

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signed the Consent Order for the filing of the second

amended complaint. Thus, the Clerk's Office erred

again in accepting an answer before the complaint to

which it responded was filed.

Unquestionably, the errors of the District Court

Clerk affected the orderly progress of the litigation. The

confusion generated by these mistakes should not affect

the plaintiff's right to proceed on a claim that on its face

appears meritorious.

[Id. at 275-76 (emphasis added).]

Given this peculiar chronology, the Circuit Court concluded that it was unfair to

the plaintiff to disallow the AOM she tendered after the hospital's answer was

filed to the second amended complaint.

In Costa, the district court dismissed defendant's motion to dismiss for

failure to file a timely affidavit of merit pursuant to N.J.S.A. 2A:53A -27 as

untimely. In that case, the plaintiff filed a wrongful death action alleging

medical malpractice after the decedent, an inmate at a corrections facility,

contracted and died from an infection while incarcerated. Costa, 566 F. Supp.

2d at 361.

There, plaintiff filed an initial complaint on February 26, 2007, and an

initial AOM on March 20, 2007. Id. at 361. The defendant moved to dismiss

on April 7, 2008, alleging that the doctor who rendered the AOM was not

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qualified to do so, and that it was too late for the plaintiff to obtain a replacement

AOM because more than 60 days had run from the defendant's initial answer.

Id. at 362.

Relying on the Third Circuit's approach in Snyder, the district court in

Costa denied the motion to dismiss. The court reasoned that the defendant's

answer to the second amended complaint was the operative trigger date for the

AOM timetable, and that plaintiff therefore had 120 days from that later date to

file an appropriate AOM. Id. at 362-63.

Further, in Endl, the district court considered AOM timeliness issues in a

case alleging that the decedent, a State prison inmate, had passed away due in

part to the defendants' medical malpractice. Endl, 5 F. Supp. 3d at 692-93. The

court denied the defendants' motion to dismiss for failure to file a timely AOM.

Id. at 705-06.

Although the individual medical defendants in Endl did file an answer to

the plaintiffs' first amended complaint, the court reasoned that the pleading was

not operative for the AOM timetable. Because the case "did not go forward

based on the [first amended complaint], the screening function of the Affidavit

of Merit was not implicated with respect to" the first amended complaint. Id. at

705-06. The court reasoned that because the defendants had not answered the

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second amended complaint but instead had moved to dismiss it, the time limits

of the AOM statute were not triggered. Id. at 706.

Finally, in Szemple, 162 F. Supp. 3d at 428-29, the district court applied

similar reasoning in concluding that an AOM was not untimely. The case

concerned a dental malpractice claim involving a prison dentist who performed

an extraction at the prison's medical clinic and caused major injuries to an

inmate. The defendants moved to dismiss the claim, which the court converted

into a motion for summary judgment, alleging that the plaintiff had not served a

timely and proper AOM. Id. at 425.

The defendants argued that the plaintiff's AOM was inadequate, based

upon an unqualified person having issued it, and because it was inadequate that

the plaintiff failed to file a timely affidavit within the 60-day or maximum 120-

day period allowed by statute. Id. at 429-30. The defendants had filed four

amended answers to the first amended complaint, with the second (the first

operative as to the specific defendant at issue) being filed on July 17, 2014, and

the fourth on August 15, 2014. The plaintiff filed his AOM on November 5,

2014, which was also before the fifth amended answer was filed on January 19,

2016. Id. at 430.

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In determining that the AOM in Szemple was timely, the district court

first reasoned that although the plaintiff had not filed a motion to extend the

statutory time limit from 60 to 120 days, there existed "good cause" to do so.

Id. at 429. Moreover, in calculating the 120-day maximum period, the court

ruled that the operative pleading was the fourth amended answer. The court cited

in this regard to both Snyder and Costa as indicative of a "liberal spirit of the

case law" and supportive of the notion that the AOM clock should run from the

final operative answer to the complaint. Id. at 430. The court observed that such

a wait-until-the-very-last-pleading approach would eliminate uncertainty and

duplication of effort. Ibid.

However, in making this determination, the district judge in Szemple also

acknowledged that "[i]n the end [] the correctness or not of my interpretation

[of the AOM statute] is not critical. The very first answer filed on behalf of

[defendant] . . . , was filed on July 17, 2014. Even counting from that date, the

120 day deadline would have expired on November 14, 2014." Id. at 431. The

court accordingly denied the defense motion for dismissal on the grounds of an

untimely AOM. Ibid.

With all due respect to our fellow judges on the federal bench, we decline

to adopt the expansive approach of these four cases. Our own experience in this

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state court is that the objectives of the AOM statute and the efficient processing

of professional negligence cases—which are litigated more frequently in state

court than in federal court with limited diversity jurisdiction over state tort

actions—is better served by treating a defendant's answer to the original

complaint as the presumptive start to the 60-day/120-day AOM timetable,

subject to recognized exceptions that we now discuss.

Substantial Compliance or Extraordinary Circumstances

Our New Jersey case law has recognized that the AOM statute, despite its

salutary objectives as an initial screening mechanism, should not be enforced so

rigidly that it becomes "a minefield of hyper-technicalities [that] doom innocent

litigants possessing meritorious claims." Ferreira, 178 N.J. at 151 (quoting

Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div.

2000)). The Supreme Court has identified two important exceptions where an

AOM is required,8 that may be established to prevent excessive and unjust

dismissals.

8

The AOM will be unnecessary if the plaintiff's claims against the licensed

professional are founded upon common knowledge, vicarious liability, or other

legal theories that do not implicate the defendant's professional standards of

care. See e.g., Hubbard v. Reed, 168 N.J. 387, 390 (2001) (liability based on

common knowledge); Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc.,

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First, the Court has recognized that the 120-day outer deadline may be

relaxed in some situations where a plaintiff has demonstrated "substantial

compliance" with the AOM statute by, say, inadvertently serving an unsigned

affidavit or transmitting it to the wrong recipient. See, e.g., Galik, 167 N.J. at

351-58. This equitable doctrine calls for an examination of whether the plaintiff

has shown "a lack of prejudice to the defending party; a series of steps taken to

comply with the [AOM] statute; general adherence to the purposes of the statute;

reasonable notice of the claim; and a reasonable expectation of why there was

not strict compliance." Id. at 357.

Second, the lack of a timely AOM may be excused in narrow situations in

which a plaintiff demonstrates "extraordinary circumstances" for the

untimeliness. See, e.g., A.T. v. Cohen, 231 N.J. 337, 340-50 (2017) (in which

an "almost perfect storm" of events, including the delayed receipt of records

from the defendant, comprised extraordinary circumstances that justified the late

submission of an AOM); Barreiro v. Morais, 318 N.J. Super. 461, 464-69 (App.

Div. 1999) (in which extraordinary circumstances were shown by the

_ N.J. Super. _ (App. Div. 2021) (holding no AOM was necessary where the

plaintiff sued an employer on a theory of vicarious liability for negligent conduct

by an employee who was not a licensed professional within the scope of N.J.S.A.

2A:53A-27).

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defendant's uncooperative failure to provide a plaintiff with requested discovery

that would have enabled the plaintiff's expert to evaluate the matter and issue an

AOM).

The Extraordinary Circumstances Exception Applies Here

At issue before us is the concept of extraordinary circumstances. We

conclude such circumstances exist here.9

As the motion judge rightly pointed out, defendants did not move to

dismiss the complaint with prejudice once 120 days had elapsed from the filing

of defendants' original answer in January 2019 or, for that matter, their amended

answer in February 2019. Depending on which starting date is used, plaintiffs'

AOM would have been due, assuming a 60-day extension to 120 days, either by

May 21, 2019 or, at the outside, June 8, 2019. The Stipulation of Dismissal was

not filed until July 10, 2019. During the interim, as the motion judge noted,

counsel were mutually focused on cooperatively negotiating a voluntary

dismissal of the complaint. Plaintiffs' counsel expressly raised urgent concerns

in his April 2 email to Pennoni's counsel that his AOM appeared to be due that

9

Because of our determination of extraordinary circumstances, we need not rest

or comment upon the somewhat allied concepts of estoppel and laches asserted

in the briefs of plaintiffs and amicus New Jersey Association for Justice.

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Friday, three days ahead, and received in response an assurance from his

adversary that Pennoni would consent to an extension totaling 120 days from

the date of the original answer. The documents supplied in the record do not

reflect any further written communications between counsel on the subject.

Defendants emphasize that the language of the negotiated Stipulation

preserved Pennoni's defenses to the claims, including explicitly a defense based

on failure to serve a timely AOM. The trial court did not deem that language to

be dispositive and neither do we. By the time the Stipulation was signed and

filed with the court in July, the 120-day outer deadline had already passed. Yet

Pennoni took no action and apparently voiced no assertion to plaintiffs then

about the expiration of time.

An important element of the Stipulation, which is manifest from the

exchange of emails, is that plaintiffs would retain the right to move to reinstate

their claims against Pennoni (albeit on conditions) if further discovery revealed

Pennoni in fact had responsibility for the unsafe condition of the premises. That

right to seek reinstatement would have been illusory if defendants already

possessed a case-dispositive, "slam dunk" basis to declare that plaintiffs were

too late to serve an AOM and powerless to remedy the omission.

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It also must be noted that, even while the negotiations over the Stipulation

were ongoing, plaintiffs' counsel was pressing to obtain documents from

Pennoni, with only moderate success. Furthermore, the certification of non-

involvement tendered by Pennoni's company official, while perhaps accurate for

what it stated, might have reasonably caused plaintiffs to misunderstand the

firm's actual involvement with the project.

To show extraordinary circumstances, it is unnecessary to establish that

an opponent acted in bad faith or deliberately misled a plaintiff. We emphasize

that we absolutely make no such determination here. What appears to have

occurred from the record is that between March 2019 and July 2019 counsel for

both sides were focused—to their mutual credit—on trying to settle their clients'

differences and resolve the claims through a Stipulation of Dismissal that could

have saved both sides additional litigation expenses.

Once it came to light months later that Pennoni had designed the

allegedly-dangerous stairs and could have deviated from related standards of

care, plaintiffs were readily prepared to supply—and did supply—the necessary

AOMs. The trial court did not misapply the statute or the applicable law by

declining to dismiss their revived claims.

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In sum, although we do not endorse the federal cases that partially guided

the trial court, we affirm the court's grant of plaintiffs' reinstatement motion and

its denial of Pennoni's cross-motion for dismissal. See State v. Armour, 446

N.J. Super. 295, 310 (App. Div. 2016) (an appellate court may affirm judgment

or order on different grounds than set forth below).

Affirmed. The interlocutory appeal is concluded and the matter is

remanded for further proceedings.

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